ATTORNEY GENERAL v. CHAU CHUNG

IN THE COURT OF APPEAL

1990, No. 18
Application for Review

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BETWEEN

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J U D G M E N T

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Silke, V.-P.:

1. Chau Chung, aged 22, pleaded guilty before Sears, J. to one count of robbery - a plea which was indicated at the pre-trial review. He was sentenced to 2 years imprisonment.

2. The Attorney General under the provisions of s.81A of the Criminal Procedure Code, and with leave, applies to this court to review that sentence on the grounds that it is manifestly inadequate or wrong in principle or both.

3. We indicated at the hearing that we were minded to grant the review. We did not then state the actual sentence we would impose or the reasons for it. We took this course because the matter of the principles to be applied on discounts for Review had been argued on the previous day and we intended to seek the collegiate view of the Court of Appeal on that issue. In Application for Review No.16 of 1990, the judgment in which we have recently delivered, that view is expressed. We nowturn to this instant Review.

4. The robbery had occurred on 27th December 1990 at 11:30 a.m. in the office premises of Right Time Transportation Company in Kowloon Bay. Four members of the company - two males and two females - were working in the office at the time. A single male came into the premises brandishing an 18 inch knife which he then held to the throat of one of the employees. The employees were told to tie themselves up and the man began to gather their valuables from them. About 10 minutes later, two other men, neither of whom was armed, entered the office. One of them assisted the knife wielding man in ransacking the premises. The other stood guard at the doorway. While this was goingon a Mr. Wu Siu Hing returned to the company office. He was also tied up, his property taken and, in the course of their dealing with him, he was kicked by one of the men. A total of $17,000 in cash and valuables and credit cards were taken. Those who were robbed of credit cards were forced to reveal their PIN numbers.

5. Later that day the respondent andtwo other men were arrested. The respondent was searched and inhis possession was found a wallet containing property of Mr. Wu Siu Hing; $4,500 in five hundred dollar notes, $2,400 in one hundred dollar notes, some smaller denomination Hong Kong notes, Canadian bank notes and a Bank of China bank note. There was also found a pawn ticket in the name of So Shun Fai, a pair of used labourers gloves and a pager.

6. When the hearing before Sears, J. began there was a successful application to treat the respondent separately from the other two men who were named with him in the indictment because of the indication given that he would plead guilty. Theirtrial had been setforanother date. That being done, the respondent entered his formal plea of guilty.

7. It was accepted, though the actual role of the respondent was unclear, that he was not the man who first entered the premises with the knife. Counsel for the Crown accepted a proposition put to her by the trial judge that, had this man been tried by himself - we think he meant indicted - this case would have been heard in the District Court. The respondent had a clear record. It was suggested in the course of mitigation that it was only upon his arrival at the premises that the respondent was aware that a robbery was going on, he having been asked to go there for other reasons. It was further suggested that, on finding out what was happening, force of circumstances made him join in.

8. The trial judge was referred to R. v.Mo Kwong Sang [1981] HKLR 610 and accepted that he should sentence on the basis of the role as explained in mitigation - therespondent a participant but not the knife wielder. He took as his first starting point 5 years imprisonment, and fromthat neither counsel in the court of trial dissented. The judge was clearly influenced by the fact that these were not domestic, in the sense of the private home of individuals, premises but an office. He emphasised, when he came to address the respondent, the importance, as he put it, that “those who are guilty should plea guilty and save considerable time and expense, and it is the best indicationof your remorse.” He thought himself to be at liberty tohave regard to the respondent’s clear record,that which he described as his “very young age” and that no real violence was offered to the victims. Having regard to the guidelines in Mo Kwong Sang, he considered that the sortof sentence after trial the respondent would have received, given his role, his age and his clear record, would have been something in the region of 3 ½ to 4 years. The judge then went on to say that, having regard to his plea and all the facts he thought he could be more lenient - and he placed particular emphasis on the fact that those who did plead guilty should receive appropriate discounts for their demonstration of remorse – the sentence after trial he would have imposed would have been in the region of 3 years. It is, with respect, unclear if this would have been after a full hearing or not, He then imposed, having regard to the mitigation, the sentence of 2 years imprisonment.

9. Mr. Cross, with him Mr. Forlin, for the Attorney General submits that the proper starting point sentence in this case would have been one in excess of 7 years which does not sit very well with the concession made by the Crownbelow as to trial in the District Court. He referred tothis as an armed robpery which following Mo Kwong Sang – “where the accused carried a knife which he displayed” should have a starting point of 5 years imprisonment; thiswas an invasion of private premises which brings the starting point to 6 years, physical violence was used and this advances it to 7 years with an aggravating factor: more than one person taking part. This last permits anincrease. Mr. Cross submits that 2 years was more appropriate to a type of petty snatching robbery or theft and that the respondent was not of “very young age” being a full adult over 21. He referred us to The Queen v.Wah Hei Ping and Others, Cr. App. 113 of 1987 where thiscourt repeated that which has been said on many occasions: those who take part in serious and violent crimes of  this nature whether they are young or not must expect heavy sentences.

10. In The Queen v. Yau Kwok Tung [1987] HKLR 782, mentioned by the trial judge in conjunction withMo Kwong Sang, no weapon was used, there was no invasion of private premises and there was no tying up of the victims - very different from here.

11. We accept that a clear record is not something which should be disregarded but, as was said inMo Kwong Sang, little account can be given to it. We do notaccept that “little violence”, as the trial judge put it, was offered here. While there was no serious violence nevertheless the victims were tied up and quite clearly put in fear.

12. We note that the “private premises” referred to in Mo Kwong Sang are specifically stated there to include domestic and business premises and the common parts of premises such as lifts and staircases (at p.611). We accept that it may be a greater shock for a person to have his own home invaded than it is to have his office but nevertheless this was an invasion of private premises within the meaning of Mo Kwong Sang.

13. When the judge took 5 years as his first starting point this was on the lenient side. We are doubtful,however, if the circumstances here merited a sentencein excess of 7 years. This respondent was not part of the original entry. He did not himself carry a knife though it must be made clear that those who participate in robberies in which knives are carried by others equally well face the prospect of punishment commensurate with armed robbery and the guidelines in Mo Kwong Sang.

14. We would have thought that given all the circumstances here a starting point after trial of 6 years would have been appropriate. We accept that pleas ofguilty, particularly those made or indicated at an early stage, are to be encouraged. That was the only real point of mitigation existing here although consideration could properly be given to the fact of the clear record, the age and the role played by the respondent.

15. Mr. Dixon Tang who appeared in this court for the respondent accepts that the guidelines in Mo Kwong Sang apply. Equally he accepts, as we have indicated, that no distinction in armed robbery cases should be drawn between participants who use violence and participants who standoutside.

16. Further he accepts that even young offenders can expect heavy sentences but has emphasised that which was said in Mo Kwong Sang (p.611), and which he says the trial judge adopted:

“That nothing which we say of course should be construed as inhibiting a court from adjusting these sentences to accord with the record, age or other personal circumstances of the accused or from taking account of the particular facts of the case before it.”

17. We do not accept Mr. Tang’s submission that the respondent did not realise a robbery was going on until he got there and therefore should not receive the full brunt of a sentence for armed robbery. Even if that were so he became a full participant in that robbery and in the violence attached to it. Amongst other things he recorded the PIN numbers forced from the victims.

18. In all the circumstances, we think that a sentence of 2 years was manifestly inadequate and that a sentence of 4 ½  to 5 years imprisonment would have been appropriate. In our discretion a sentence of 4 years imprisonment is the one we think would now be right to impose. This allowsamodicum of discount for the fact that we are increasing very substantially the sentence upon this “comparatively young man of 22” (see R. v, Chu Kam Hon and Others, Cr.App. 399 of 1986 (unreported)).